(Is)land, sea, and what it takes
to ‘stabilise’ a maritime boundary
by Alex P Dela Cruz*
Published on 2 October 2023
Yusra Suedi’s 2021 article at the centre of this symposium provides useful perspective in thinking about the ‘stabilisation’ of boundaries and the work that such a concept does to local populations. I emphatically agree with her observation that the ‘purely geometrical exercise’ of boundary delimitation renders local populations virtually invisible in the decision-making of the International Court of Justice (ICJ). In this short blog post, I make a related observation using an example from law of the sea litigation. I then gesture towards other lines across the sea that are now disappearing as a result of the project to stabilise maritime boundaries.
For the 2016 South China Sea Tribunal, the invisibility of local populations played a significant role in the Philippine challenge to the legality of China’s ‘nine-dash line’. The ‘nine-dash line’ is a cartographic depiction of the Chinese claim to the South China Sea and its islands (South China Sea Award, p. 67, note 131). As the Philippines saw it, if the features across the South China Sea, specifically the Spratly Islands, were not islands in international law, then any lines marking a maritime or territorial claim using such features should be declared unlawful. Thus, the issue of ‘human habitation’ came to be a point of controversy in relation to the legal status of disputed features: are they ‘islands’ or ‘rocks’ under Article 121 of the UN Convention on the Law of the Sea? At stake in the distinction is the extent to which a feature might be entitled to maritime zones. If a feature were an ‘island’ under Article 121(1), then it would generate the full suite of maritime zones: 12 nautical miles (nm) of territorial sea, a 200 to 350-nm continental shelf, and a 200-nm exclusive economic zone (EEZ). If a feature were a ‘rock’ which ‘cannot sustain human habitation or economic life’ of its own under Article 121(3), its entitlement is limited to no more than a belt of territorial sea.
From the standpoint of the Tribunal, the legal status of disputed features also presented a jurisdictional question in relation to the request of the Philippines to declare Mischief Reef and Second Thomas Shoal as part of its EEZ and continental shelf. If any maritime feature claimed by China within the vicinity of Mischief Reef and Second Thomas Shoal were islands under Article 121, the Tribunal would be barred from addressing the Philippine request (South China Sea Award, para. 402). The Tribunal went on finely to parse the language of Article 121(3) of the Convention. It held that human habitation implies ‘a non-transient presence of persons who have chosen to stay and reside on the feature in a settled manner’ (South China Sea Award, para. 489).
The Tribunal also characterises Article 121(3) as preventing distant states from asserting expansive claims to jurisdiction through the newly created EEZ regime. According to the Tribunal, Article 121(3) ‘serves to disable tiny features from unfairly and inequitably generating enormous entitlements to maritime space that would serve not to benefit the local population, but to award a windfall to the (potentially distant) State to have maintained a claim to such a feature’ (South China Sea Award, para. 516). As Professor Douglas Guilfoyle writes, the Tribunal interpreted Article 121(3) as distinguishing between ‘deserving local populations (of developing states)’ who should gain from expansive maritime entitlements in the Convention and ‘undeserving distant seafaring states (great powers and former colonizers)’.
Beyond the passing reference to local populations, the South China Sea Tribunal was not called upon to delimit a maritime boundary. Yet, its account of human habitation in the Spratlys (or, precisely, the lack thereof) offers us a picture of what the broader imperative of ‘stabilising’ a maritime boundary and related entitlements to the ocean demands of international lawyers and institutions. For the many lines that are marked on land, as Professor Surabhi Ranganathan puts it, ‘even more – and imaginatively conceived – lines were marked on the sea’. On the question concerning the legal status of the disputed features, the Tribunal concluded that none of the features in the Spratlys are capable of sustaining human habitation or an economic life of their own and are thus ‘rocks’ for the purposes of Article 121(3) (South China Sea Award, para. 646). Within a Convention that aims to reflect a delicate balance of interests in the ocean, the act that has enabled the Tribunal to ‘do its job’ is that of characterising the South China Sea as a space in which humans have not thrived.
What world(s) do we miss in this process of stabilisation?
A different set of lines have been drawn across the South China Sea from centuries of repeated crossings from its shores. Unlike maritime boundaries, these lines are fluid and denote interconnected histories, flows, and itineraries that pre-date the Convention. As Edyta Roszko points out, today’s fishers had previously functioned as shipbuilders, sailors, traders, and pirates whose activities were ‘always relational and situational’. As such, their crossings often defied status and political boundaries. Playing on national anxieties around the ‘unmappability’ of certain boundaries, governments across the South China Sea are co-opting past seafaring narratives, flows, and itineraries in the service of those governments’ assertions of jurisdiction and sovereignty in the present. Fishers are increasingly regarded as agents on behalf of national governments. In China, civilian fishers have been reconstituted into fishing militias within a national defence mobilisation system that can ‘respond to emergencies and fight during war times’. In the four decades since the adoption of the Convention, the character of South China Sea crossings has changed radically. Flows have turned into patrols; exchanges to confrontation; and interconnection to enclosure. In international law, the stabilisation of concepts is always subject to contestation beyond the confines of dispute settlement mechanisms. As the project to stabilise boundaries intensifies with nefarious consequences to marine environments and communities, perhaps international lawyers and institutions should pause and consider the price of being blind to local populations in international legal argument.
Alex P Dela Cruz is a PhD Candidate and Research Fellow at the Institute for International Law and the Humanities at Melbourne Law School, Australia.